Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

04/07/2022

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Alun Davies AS
Huw Irranca-Davies AS Cadeirydd y Pwyllgor
Committee Chair
James Evans AS
Rhys ab Owen AS

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Aled Evans Cynghorydd Cyfreithiol
Legal Adviser
Kate Rabaiotti Cynghorydd Cyfreithiol
Legal Adviser
Nia Moss Ymchwilydd
Researcher
P Gareth Williams Clerc
Clerk
Sarah Sargent Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 13:31.

The committee met by video-conference.

The meeting began at 13:31. 

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Prynhawn da, pawb—good afternoon. Welcome, everybody, to this meeting of the Legislation, Justice and Constitution Committee. We are meeting in a virtual setting today, but we have full attendance here. Just to remind everybody, even though we're meeting in a virtual session, all the other Standing Order protocols apply as normal. No apologies. No need to run through fire alarms or anything here, because we're all meeting virtually. We've got full translation as normal, so we're operating through Welsh and English. So, just pick your interpretation on the screen for which language you'd prefer if you need translation. And, of course, the sound operator is operating the microphones. 

2. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

We've got quite a busy agenda in front of us today, both in public and in private session, so we'll get straight under way with our normal first item, item No. 2, which is instruments that raise no reporting issues under Standing Orders 21.2 and 21.3. Now, we have three of these to work through. Yes, we do, and the first of these is statutory instruments with clear reports. We have a made negative resolution instrument, SL(6)216, the Curriculum and Assessment (Wales) Act 2021 (Consequential Amendments) (Secondary Legislation) (No. 1) Regulations 2022. Now, this instrument makes amendments to the secondary legislation required to give full effect to provisions under the Curriculum and Assessment (Wales) Act 2021 and the implementation of the new Curriculum for Wales from September 2022. And we've got further related instruments to this that we will consider under item 3 as well, just to let you know. So, we've got no points for reporting on this. Are we happy just to note that and agree it? We are. Thank you very much, colleagues.  

That brings us on to item 2.2, SL(6)221. It's an affirmative resolution instrument, the Corporate Joint Committees (General) (No. 2) (Wales) Regulations 2022. And we've got a written statement accompanying this in your pack as well. So, this instrument makes provision in relation to corporate joint committees established under the Local Government and Elections (Wales) Act 2021. These regulations form part of a package of instruments underpinning the establishment of CJCs, seeking to ensure that they are subject to the same administrative and governance requirements as local government. So, I've drawn your attention to the written statement as well. Again, no points for reporting, so are we happy to note that and agree? We are. 

So, we will go on, then, to item 2.3. This is SL(6)223, the Regulated Services (Service Providers and Responsible Individuals) (Wales) (Amendment) Regulations 2022. And this extends the requirement that employees and workers providing care and support to care home services for adults and to residential family centre services are registered with Social Care Wales. It's a clear report again, so are we happy to note and agree that? We are. Thank you very much. 

3. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

So, on swiftly then to item No. 3, which, as per normal, are the instruments that do raise issues to be reported to the Senedd under those Standing Orders 21.2 and 21.3. Just to say to Members that the instruments we're going to consider next under items 3.1 to 3.4 are linked to the first instrument we dealt with earlier on this afternoon where there were no reporting issues, and they've been laid as part of a suite of regulations giving full effect to provisions under the Curriculum and Assessment (Wales) Act 2021 and the implementation of the Curriculum for Wales from September 2022.

So, we've got items 3.1 to 3.4. The first one of these, item 3.1, is a made negative resolution instrument, SL(6)217, the Curriculum and Assessment (Wales) Act 2021 (Consequential Amendments) (Secondary Legislation) (No. 2) Regulations 2022. So, these regulations make amendments to the secondary legislation required to give full effect to provisions under the 2021 Act and the implementation of the curriculum from September 2022. In doing so, they revoke several instruments, with others being gradually disapplied before being revoked. Now, our lawyers have identified one merits point for reporting. We haven't had a Welsh Government response yet, so if I could turn to our lawyers for any comments that they want to make on this.

13:35

Thank you. The merits point notes inconsistencies and errors in the definitions in regulation 2. For example, in the English text, some of the Welsh defined terms are incorrect or missing, and there is also no definition of year 2 even though regulation 11(2)(c) refers to pupils in years 1 to 6, and each of the other year groups is defined. We have actually received the Welsh Government response within the last couple of hours. In the response, the Welsh Government has confirmed that it will correct the inconsistencies in relation to the Welsh terms at the next available opportunity. However, the Welsh Government does not agree that it's necessary to define year 2, when this term is not expressly referred to in the regulations. Just to say that our view remains that it would be proper to include a definition of year 2, since that's necessary to understand what pupils in years 1 to 6 means. However, as the other groups are all defined, and as school year groups are generally well understood, we wouldn't propose that the committee did anything further on this point.

Okay, thank you. So, a small win there, a small but important win, and we've raised the points on the other matter—no need, you think, to actually go back and fight this battle again. Colleagues, are we happy with those points and the report on that? We are. Thank you very much. Thank you for that advice there. 

We'll go on then to the related item 3.2, SL(6)218, the Provision of Information by Head Teachers to Parents and Adult Pupils (Wales) Regulations 2022. These place duties on headteachers of all maintained schools, including pupil referral units, to make arrangements for the provision of information to parents and adult pupils in respect of the progress of a learner against the relevant curriculum across the academic year. So, our lawyers have identified one merits point for reporting. What is that? What have you found here?

Thank you. The merits point is that the regulations do not define the term 'head teacher' even though this is used extensively throughout the regulations, and that term is defined in one of the other regulations within this suite. So, there's an inconsistency there. We've sought a response from the Welsh Government. We haven't yet received it.

That's brilliant. Okay, colleagues, happy with that reporting point there? Okay. We'll await the Welsh Government response.

So, we're on, then, to item 3.3 in this linked batch, linked suite of regulations, SL(6)219, the Education (Temporary Exceptions for Individual Pupils and Children) (Wales) Regulations 2022. These regulations enable headteachers of maintained schools and maintained nursery schools and providers of funded non-maintained nursery education to determine that the provisions of the Curriculum for Wales should not apply to a child or pupil or should apply with modifications. Now, our lawyers have identified one technical and one merits point for reporting. Go ahead, tell us what they are.

Thank you. The technical point notes that there is no requirement in regulation 11 for a relevant person to give reasons when refusing a request to make, revoke or vary a determination. The explanatory note suggests that reasons must be given where such a request is refused, but this is not actually reflected in the text of regulation 11. The Welsh Government's response on this point notes that section 44 of the Curriculum and Assessment (Wales) Act 2021 provides that

'A head teacher who makes, varies or revokes a determination'

under such regulations must provide reasons in writing, and the Welsh Government's view is that it is implicit in section 44 that this also includes a requirement to provide reasons when refusing to make, vary or revoke the determination. 

The merits point then, again, is that there is no definition of 'head teacher' in the regulations, and the Welsh Government's response agrees that this definition would be useful, and they've confirmed that they will amend the regulations at the next available opportunity to include the definition. 

13:40

Ah, that's brilliant. Good, thank you. Okay, having flushed those out so that everybody can see those points, are we happy, colleagues, to agree that, to agree those points? Yes, we are. Thank you very much for that.

And then that brings us on to item 3.4, SL(6)220, the Education in Multiple Settings (Wales) Regulations 2022. And like the previous item, we have a draft report, but we also have a Welsh Government response here as well. So, these regulations require the appropriate local authority to make and review a plan for those children and pupils who are educated in more than one setting. So, the plan must set out the teaching and learning to be provided for the child or pupil at each setting and the assessment arrangements that will apply to the child or pupil at each setting. And our lawyers have identified one merits point for reporting. Over to you, again. 

Thank you. So, again, the merits reporting point notes that there is no definition of 'head teacher' in these regulations, and the Welsh Government response agrees that the definition would be useful, and they confirm that they will put one in at the next available opportunity. 

That's brilliant, thank you. We are nothing if not consistent. Thank you very much for that. Excellent. Are colleagues happy to agree that? We are. Brilliant. Thank you very much. 

Okay, well, that takes us beyond that suite of items, but we go on to other items now within this same category where we do have reporting points. The first of these is item 3.5, where we have an affirmative resolution instrument, SL(6)228, the Restricted Roads (20 mph Speed Limit) (Wales) Order 2022. We have a draft report and a letter accompanying this in your packs. So, these regulations lower the speed limit from 30 mph to 20 mph on restricted roads in Wales, a restricted road being defined as a road with

'a system of street lighting furnished by means of lamps placed not more than 200 yards apart.'

All of us who've been through the highway code test will remember this very well, I'm sure. But our lawyers have identified one technical and three merits points for reporting. So, back to you. 

Thank you. The technical point notes that, when the Order comes into force, it will require the reference to '30 miles per hour' in section 81(1) of the Road Traffic Regulation Act 1984 to be interpreted as a reference to 20 mph. And so the Welsh Government is asked whether it considered instead using the relevant powers to make a textual amendment to the speed limit on the face of the Act in the interest of accessibility of the law to road users. 

The first merits point then notes the lengthy period before the Order will come into force and the explanation provided for this in the explanatory memorandum. The second merits point asks the Welsh Government to explain how it will ensure that any changes to the highway code are put in place before the Order comes into force, noting that any such changes will need to made by the UK Government. And then the final merits point notes that no formal justice impact assessment has been undertaken, and this is because the impact on the criminal justice system is assessed as slight. This is based on data from the Llanelli North enforcement pilot, where the majority of recorded speeding offences fell within the range appropriate for a speed awareness course. The Welsh Government is asked whether its conclusion that the impact will be slight took into account the difference between lowering the speed limit within a defined pilot area and lowering the default speed limit across Wales. The Welsh Government is also asked whether it considered the wider eligibility criteria for speed awareness courses, which includes a limit on the number of times that a driver can take such a course, and we're awaiting a Welsh Government response. 

Good. Okay. That's excellent. Thank you. Colleagues, any comments, or we are happy, for the moment, to agree those reporting points? We are. Thank you very much. We look forward to that Welsh Government further response to those points.

13:45
4. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 – trafodwyd yn flaenorol
4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered

So that takes us on to item No. 4, which, as per normal, is instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, but which we have previously considered. And the first of these is item 4.1, SL(6)213, the Welsh Language Standards (No. 8) Regulations 2022, and we have a report and a letter in the pack for Members here. So, we considered this instrument at our meeting on 27 June, and we laid our report later that day. The Minister for Education and Welsh Language has since written to our committee to inform us that he intends to withdraw and re-lay a corrected version of the regulations. Just to inform Members, these regulations were, indeed, formally withdrawn on 30 June, and a corrected version of the regulations was laid the same day. So, we'll be considering the corrected version at our next meeting. So, knowing that that is coming back to us, are we happy to note that? We are. Thank you.

Item 4.2, we have SL(6)207, the Novel Foods (Authorisations) and Smoke Flavourings (Modification of Authorisations) (Wales) Regulations 2022. And again we have a report and the Welsh Government response. We considered this instrument at our meeting on 20 June, and we laid our report the next day. So, I just invite Members to note the Welsh Government report that has since been received, unless Members have got any comments on it at this point. No. Okay. We're happy to note that.

Item 4.3 is SL(6)212, the Education (Information About Individual Pupils) (Wales) (Amendment) Regulations 2022. And again we have a report and a Welsh Government response. We considered this instrument at our meeting of 27 June, and laid our report that day. So I just, at this point, invite Members to note the Welsh Government response, which has been received, unless you have any comments. No. We're happy with that; we'll note that.

5. Cytundeb cysylltiadau rhyngsefydliadol
5. Inter-institutional relations agreement

So, that brings us on then to item No. 5, notifications and correspondence under the inter-institutional relations agreement—again, a regular part of our deliberations. We're going to turn to item 5.1 first of all, where we have a written statement by the Minister for Health and Social Services and the Deputy Minister for Mental Health and Well-being on the attendance at the inter-governmental meeting on 16 June, and also an overview of the issues discussed at that inter-governmental meeting. Are we happy to note that for now, although we can return to it in private, of course? We are. Okay. Thank you.

We then turn to item 5.2. I draw your attention to the letter from the Minister for Education and Welsh Language, telling us that he intends to give consent for the UK Government for it to make the EU Agencies (Revocations) Regulations 2022. Just to note, colleagues, in the letter, the Minister states that the Welsh Government recognises the need for the UK Government to legislate in certain devolved areas in exceptional cases; in this instance, the Welsh Government considers that the proposed regulations are non-controversial and that they make a technical change to the statute book. So, just for you to be aware of the rationale behind that. Happy to note? We are, I think. Yes, we are.

I go on to item 5.3, where we have correspondence from the Minister for Climate Change. The Minister informs the committee that she intends to give consent to the UK Government for it to make the Official Controls (Plant Health) (Frequency of Checks) Regulations 2022. Now, just to note for colleagues, within the letter the Minister states that she considers that

'legislating separately for Wales'

in this instance

'would be neither the most appropriate way to give effect to the necessary changes nor a prudent use of Welsh Government resources given other important priorities.'

I just flag that up for now. It might be something that we want to return to again in private session, the substance of that letter, because it makes for interesting reading in terms of our wider consideration of the way these things are being handled. But if you're happy to note for now. We are. Yes.

So, we'll go on to item 5.4. We have correspondence from the Minister for Finance and Local Government with an overview of the issues discussed at a meeting of the Finance: Interministerial Standing Committee on 15 June. If you're happy to note that now, it's just publicly worth mentioning the level of detail in the letter and the good level of transparency. This is just what we want to see. We can't be at those meetings, but knowing the detail of what was discussed and what were the outcomes is a real step forward. So, it's just an acknowledgement to give credit where credit is due once in a while there, because we can be quite begrudging in our thanks sometimes. We might return to that as well.

13:50
6. Papurau i’w nodi
6. Papers to note

So, in which case, we're on to the papers to note for today, and we have quite a few of them under item 6. Item 6.1, we have a written statement by the Counsel General and Minister for the Constitution in respect of the retained EU law interactive dashboard. It provides the Welsh Government's view on the retained EU law interactive dashboard. It's an interesting piece, and, unless Members have any comments at the moment, we might want to return to that in private session as well. So, we're happy to note that.

I'll go through some others here. Item 6.2, we have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd, responding to the committee's concerns that we expressed on the Agricultural Wages (Wales) Order 2022. You'll remember the discussion we had on this matter previously. Just to note, the Minister has indeed confirmed that the next Order will now apply retrospectively, and also to note that the Minister has given a commitment to make future explanatory memoranda for agricultural wages Orders bilingual. Now, that's important. It's an issue that we flagged, we raised, and it's good to see a positive response there from the Minister. But, if you're happy to note that for the moment, we'll go on, then, to item 6.3.

We have correspondence from the Minister for Climate Change to the Llywydd in respect of the Social Housing (Regulation) Bill, noting that the draft Bill was only made available to the Welsh Government the day before introduction. This is something we've picked up before, and all of us have commented on this. Consequently, the Minister states in the letter that it has not yet been fully possible to consider the devolution consequences of what is proposed, and if a legislative consent memorandum is required for the Bill it will now, of necessity, be laid outside the normal two-week Standing Order 29 deadline. So, just to note that in public there, but we might return to that in private as well.

Then we go on to item 6.4. We have correspondence here from the Minister for Finance and Local Government to the Chair of the Finance Committee in respect of the Welsh Tax Acts etc. (Power to Modify) Bill. Within the letter, they enclose a draft statement of policy with respect to the exercise of the power to make retrospective legislation within the Welsh Tax Acts etc. (Power to Modify) Bill as required by section 3(2) of that Bill. We note that.

We go on to item 6.5. Here we have a letter from the Minister for Climate Change to the Llywydd, informing the Llywydd that, due to very limited prior consultation by the UK Government and the complexity of the Genetic Technology (Precision Breeding) Bill, it has not yet been fully possible to consider the consequences for Wales. And you will note from that letter as well, in your pack, colleagues, that the Minister writes that she is

'extremely concerned that the UK Government has chosen not to work within the Common Frameworks that are in place in several of these policy areas.'

Now, that's worthy of our note as a committee, because this is something that we've discussed in quite some detail, the utility of the common frameworks and the potential of them if they're used well and all parties adhere to the way that they work, so we may want to return to that. The Minister also informs the Llywydd that, once the Welsh Government has a clear picture of the devolution consequences for Wales, it may be necessary to lay a legislative consent memorandum, though, clearly, once again, it will be outside the normal two-week Standing Order 29 deadline.

One other thing just of importance in public here on that for Members: the Minister's expectation, she writes, is that the Bill will progress through the UK Parliament 'at pace'. So, are we happy to note that for now? We can return to that discussion then in private. We are. Okay.

Item 6.6, we have correspondence from the Climate Change, Environment, and Infrastructure Committee to the First Minister, highlighting the committee's concerns regarding the ongoing operation of Wales's interim environmental governance measures. This is something that, in a policy context, has been of great interest, obviously, within Wales. So, the Climate Change, Environment, and Infrastructure Committee's letter repeats its call for a relevant Bill to be brought forward as a matter of priority. So, just to note that.

Item 6.7, the final piece of correspondence, is from the Counsel General and Minister for the Constitution and the Minister for Social Justice in respect of the UK Bill of Rights, which has had a lot of attention in recent days. So, in noting the letter from the Counsel General and the Minister for Social Justice on the UK Bill of Rights,  just to note that the letter indicates that only five of the 41 clauses of the Bill were shared with the Welsh Government prior to introduction, which means that the Counsel General and the Minister have written, indicating, saying, in quotes, they

'were largely meaningless without sight of the other clauses to which they relate'

within the Bill. The letter also states that the Bill 

'is very complex and amends the Government of Wales Act 2006, therefore a very close examination of each and every provision will be required.'

One other thing for colleagues to note here on our committee: the  Llywydd is informed by the letter that the Welsh Government intends to lay a legislative consent memorandum before the Senedd as soon as it has a clear picture of the devolution consequences of the proposed legislation. It will once again be outside the normal two-week Standing Order 29 deadline, and the Welsh Government hopes to lay it, we are told from that correspondence, early in the Senedd's summer recess. So, if we're happy to note that as well. It's a fair bit of business that we might—. Oh, Alun, go ahead.

13:55

Thank you very much, Huw. We've heard of a number of occasions this afternoon where the UK Government is driving a coach and horses through the agreements that we have in place. Now, when the Counsel General, I think it was, brought the inter-governmental agreement, alongside the First Minister, to the Senedd, it was seen to be a major step forward in inter-governmentalism. That was on the basis, of course, that all Governments would keep to those agreements and deliver on those commitments. Now it appears, from what you've been saying this afternoon, that the UK Government is treating the other Governments of the UK in the same way as it's treating the EU, in that it makes an agreement and then it breaks it almost entirely straight away. And that can't be acceptable, and I think we need to give some due consideration to the way in which this is operating, and it's something we may wish to consider early in the autumn term—a review of the inter-governmental agreements in light of what we are seeing at the moment, and if they're not working, if they are being systematically broken, then we'll need to review our approach to them. 

Thanks, Alun. I'm going to bring James in in a moment. Just to note, we'll have a couple of opportunities as well to go into some detail on this when we have a really firm analysis pulled together. One is within our annual report as well, which we've committed to bring in front of the Senedd, with some deliberation and consideration in detail over the summer, and I think that will be good. But the other thing is, of course, we hope to have representatives of Her Majesty's UK Government in front of us before too long as well, and it would be a good opportunity to explore it with them as well as with our own Counsel General. But your points are well made. James, over to you as well.

Diolch, Cadeirydd. I do echo some of Alun's points here about the UK Government's lack, shall I say, of awareness with involving devolved administrations in policy development. I'm quite outspoken on this and have been since I joined the committee. I'm quite happy to say this in open session. Do you think, Chair, it would be worth us writing to Michael Ellis, who is in the Cabinet Office, who does have overall responsibility in that department for devolved issues, and also perhaps to the Cabinet Secretary, to raise our concerns at the Cabinet Office level within the UK Government, so they can send some sort of reminder note around to all the departments that when they are formulating policy, they must consider the devolved impacts that policy will have, just to raise our concerns? And then, when we do get UK Government officials in front of us, hopefully they'll have taken those points on board and we can get some answers to some of the questions that we may have. Diolch, Cadeirydd. 

14:00

James, thank you very much. That's a really constructive suggestion, a really helpful suggestion there, and possibly well targeted as well, particularly if we're going to have UK Government representatives in front of us later, within the next couple of months, to forewarn them, and perhaps to get them to take this on board before they get to us, so they don't get it served cold and fresh in front of them, not that it should be if they've been keeping an eye on our deliberations. But I can see colleagues, all colleagues, were nodding as you made that point, so if we return to that in private session, let's plan a way forward on this. But, yes, it's a consistent theme, as everybody has recognised, and today, in the correspondence that we've noted and the reports in front of us, it is so prominent. 

7. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
7. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

So, okay, in which case, colleagues, if I can ask you, if you're happy, under Standing 17.42, to go into private. We'll get into the meat of some of these things in private discussion. Are we happy to do so? We are. In which case, we'll go into private, and we'll wait for our clerking team to tell us that we are hidden away from public view.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:01.

Motion agreed.

The public part of the meeting ended at 14:01.